Court stands firm on decision in favor of Ninole subdivision

The state’s Intermediate Court of Appeals denied a motion by a Big Island landowner to reconsider its decision regarding a Ninole subdivision first approved nearly a decade ago.

But Mark Kellberg, who began fighting the subdivision in 2005, said he plans to take the case to the state Supreme Court. He declined to discuss the case Friday.

The ICA ruled against Kellberg last month, finding he failed to exhaust his administrative remedies in opposing the 49-acre North Hilo subdivision, owned by Michael Pruglo. Kellberg argued he was never given the proper opportunity to appeal former Planning Director Chris Yuen’s decision to grant the subdivision.

The case dates back to Yuen’s July 2005 decision in which the 49 acres was subdivided, according to county records, into six lots. The problem, Kellberg said, is the applicant actually applied for, and received, a seven-lot subdivision. While the land was zoned for 20-acre lots, the county agreed Pruglo could have six smaller lots because the land had already been functionally six lots since before the zoning code was adopted.

Kellberg, who owns property next door, said he received no notice — no letter, no sign posted advertising the application and no evidence of development — that a

subdivision was proposed. Only after Yuen signed off on the application, and two days after the 30-day window to appeal the decision, did someone contact Kellberg about the change. He claimed, in court documents, Yuen eventually conceded the county granted the subdivision request erroneously, but refused to vacate the decision.

Pruglo and his planning consultant applied for the subdivision under an exemption in the zoning code. Kellberg said that exemption only applies to subdivisions in which the same number of lots as currently exist or fewer lots will be created. By adding a seventh lot, which planners apparently didn’t see on the application, the request didn’t qualify for that exemption, Kellberg argued.

He spent 21 months pursuing an administrative remedy before filing his initial lawsuit, in May 2007, with the 3rd Circuit Court. Records showed he prevailed on some issues with the court, but ultimately lost the case.

“Five months after having taken the matter under advisement … (the court) found that it now lacked jurisdiction for Kellberg’s failure to exhaust administrative remedies,” Kellberg’s opening brief to the ICA said, summarizing the lower court case.

In April 2011, Corporation Counsel attorneys filed a motion for summary judgment, which 3rd Circuit Court Judge Ronald Ibarra, who took over the case after a previous judge recused himself, granted, noting an “absence of any genuine issue of material fact,” the county’s opening brief to the ICA said.

Corporation Counsel argued Kellberg failed to follow some of the lower court’s requests, made inconsistent arguments and sought inconsistent relief. Further, the county argued, Kellberg’s failure to name the lot owners, and not just the county, as defendants, was problematic, because Kellberg was asking the court to effectively undo the subdivision. If that happened, corporation counsel argued, the lots would no longer exist and the owners would lose the money they had invested in the property.

The county’s brief noted some of those land owners had applied for building permits for their property.

“Although Kellberg may be unhappy that the 49-acre parcel adjacent to his lot has been subdivided into six lots, this does not provide a legal basis to take property rights from his neighbors,” the county’s brief said. “The Hawaii County Code is clear, pre-existing lots are exempt from the subdivision requirements because they existed prior to the enactment of the subdivision code. Pruglo and the other owners have a right to utilize their property without further interference, to hold otherwise would be unjust.”

In his response, Kellberg’s attorney argued county law says permits applied for with incorrect information should not be allowed to continue, just because the county grants the permit request.

The ICA ruled that even though Kellberg missed the 30-day window to file with the Board of Appeals, he could have appealed Yuen’s decision not to reconsider the subdivision. The court denied, without comment, Kellberg’s July 1 motion to reconsider its decision.

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